Why is a utilitarian view so bankrupt?

There are many issues, so I’ll just concentrate on this case. The first one is that utilitarians argue that with IP, “something” will be better. What will be better? How do you measure it? Is it even possible to be measured without competing legal systems? Why should one criterion be used for measure and not other?

As far as I can tell, utilitarian considerations are the only realistic justification for any property rights, including regular property rights.

It is only necessary if your argument is that a certain distribution of scarce resources is more beneficial than another. But the existence of the requirement for a distribution in general follows from the requirement to consume. The alternative consumptions of scarce resources are mutually exclusive, so people need to make some arrangements for how they should be distributed. IP is just another way of distributing scarce resources.

WHY is prior instantiation sufficient to establish ownership?

In addition to that, IP proponents need to explain how to divide patterns into “worthy” and “unworthy”, since every action whatsoever is an instantiation of an infinite number of patterns. As usual, they are completely oblivious to this.

Why is a utilitarian view so bankrupt? As far as I can tell, utilitarian considerations are the only realistic justification for any property rights, including regular property rights. Yes, the rivalrous and scarce nature of property comes into play, but these attributes pale beside the usefulness of property. After all, if it weren’t useful, the facts of its rivalrousness and scarceness would be irrelevant. And homesteading is simply a procedure for determining who owns property; it’s no justification for it. And if utilitarian considerations are so important with respect to regular property rights (which they are), why shouldn’t they be important wrt IP?

“The argument is that homesteading is sufficient to establish *ownership* in the physical resource. You are essentially claiming that ownership in a physical resource can be established based on having previously instantiated a pattern in some *other* physical resource. I.e., if I instantiate this pattern in a resource I have homesteaded, *you* are now the owner based on your previous instantiation.

I will ask you yet again: WHY is this a legitimate theory of property rights? WHY is prior instantiation sufficient to establish ownership? Please, get off your EM-hobby horse long enough to answer this simple question.”

Exactly right. They have no reply. They smuggle in an implicit utilitarian view without wanting to name it explicitly b/c they know how bankrupt it is.

This is not accurate. The argument is that homesteading is sufficient to establish *ownership* in the physical resource. You are essentially claiming that ownership in a physical resource can be established based on having previously instantiated a pattern in some *other* physical resource. I.e., if I instantiate this pattern in a resource I have homesteaded, *you* are now the owner based on your previous instantiation.

I will ask you yet again: WHY is this a legitimate theory of property rights? WHY is prior instantiation sufficient to establish ownership? Please, get off your EM-hobby horse long enough to answer this simple question.

1) If you want to call “the exclusive right to make EM oscillations at a specific frequency” — which is intangible — another property right, fine. This allows you to avoid having to admit that homesteading doesn’t get you all rights in that resource. But then, if there can be property in the intangible “exclusive pattern formation of EM waves”, why not in ideas? If I just call those property, then I can certainly claim that you fully own your paper, but are violating my property in the idea — and you’d have exactly the same basis for responding to me as if I claimed EM “interference”, whatever that means. Have you read the gong-rights article I linked? If not, chop chop.

2) Yes, it is important that you can’t even say what your position on EM spectrum rights is, since they’re such a common, everyday issue. These issues are entangled, and if you can’t say what your position is on it, and how it obviously follows from the “well-supported” citadel of arguments you’ve supposedly built up, then you don’t have much of a citadel, do you?

The sources you point to this aren’t responding to the challenge I’m posing. They say that the EM spectrum is scarce. But none of them define exactly what is meant by that. After all (like I’ve said a trillion times), it’s most certainly *not* scarce, in that infinite people can blast EM waves. But no, that wouldn’t … er, *satisfy* anybody, because you wouldn’t be able to wring out information transmission capability, just like in the gong case you haven’t read. And then, once you nail down exactly what you’re owning (the right to make a certain assumption that assists in communication), you have given up the right to object to the same kind of claim in ideas.

3) You have not replied to the calculation problem. You haven’t shown how prices tell that person whether he should look for new ideas or produce more physical goods. Physical property rights lead to differential pricing for (the rights to use) physical goods of different value and thereby redirect resources — okay, we all agree on that. So now, if there is no IP, and the right to use any idea is forced to zero, how can this zero price reflect its relative merit? How does any market signal reflect the relative merit of producing different ideas?

Complete blank-out here. No response. No evidence you’ve even realized this is a problem.

4) I am not simply “poking holes” in a complex and well-supported case; rather, I am showing how the case has no basis to begin with. Your whole argument amounts to, “If you assume that homesteading suffices to give you rights to instantiate every possible pattern in the homesteaded physical resources — the VERY THING under dispute — then homesteading gives you that right. It’s a circular argument. No amount of complexity or references are going to get you out of this.

Perhaps this “100% usage rights” question is better is better phrased as, who has 0% (ie, no) usage rights? I would say, everyone *but* the homesteader.

This is a nice attempt, but still problematic. It depends on how to define “use”. IP proponents reach their conclusion by defining “use” through causality. And even if you stick to the realm of the physical, you could construct an argument that someone alters a bullet that enters his body and therefore is violating the bullet owner’s rights. This only demonstrates that causality is an insufficient condition for homesteading / trespass, and that a change in a physical world is an insufficient condition for determining who violated who’s rights. Stephan’s paper “Causation and Aggression” is the best attempt I know of for filling in the gaps.

And in the interests of saving you pointing out things like this if you are going to reply to this, I should point out that my first degree was in maths and that I studied logic and therefore that I have quite literally forgotten more about formal logic than most people ever know.

In any case I don’t think the EM spectrum case poses any problem whatsoever for the IP case. I never said, as you implied, that homesteading a scarce resource gives you “less than 100% ownerhsip” of it. I think that mentality is a fallacy–people often say that your property rights are limited by others. No. It isy our actions that limit what you can do–with any means, whether you own it or nor. You are always free to use any means you rightfully have control of, to do anything at all except trespass on others’ property. This is just libertarianism 101. IF it is true that the EM spectrum is a scarce resource and a given airwave is in fact homesteaded by someone else (and of course the whole spectrum is not homesteaded by a given broadcaster any more than a guy with a farm homesteads all of Norht American; and I thing homesteading principles along Rothbard’s line of the relevant technological unit help delimit this), then I cannot take an action that invades this–this is not a limit on my property rights but on my action, just as all property rights of others are. This limit in fact presupposes and thus confirms the notion of property rights in scarce resources.

Your attempt to analogize an “information wave” to an EM wave “propagating” is sheer scientism and overuse of metaphors run amok. It is incoherent and unscientific, and proves nothing whatsoever.

Your bizarre notions about calculation somehow showing that there are (need to be?) property rights in information are literally risible. I cannot believe you keep making this argumen.t The object of action is some end state that would not otherwise occur. The end state is usually some kind of transformation of scarce resources, that you achieve by the use action employing scarce means in accordance with causal laws–causal laws that one understands, in accordance with information at one’s disposal. The information is a guide to action and plays into action that way. Information is a non-scarce good, and need not be conserved, since it may be copied and re-used without diminishing its serviceabiltiy; and it may be used simultaneously by any arbitrarily large number of actors. The calculation problem has to do with how to allocate SCARCE resources. Information may factor into this any number of ways–as a guide to action, say, or as a feature of the scarce resources you are trying to achieve by rearranging them in some way.

As an example, you may want to make money, to use in your life. A salary or profit, say. If you realize people desire a service, you can use your scarce means (your body, etc.) in accordance with skills you possess, to offer to perform this action in exchange for money. Calculation has to do with your appraisement of the costs you need to expend in the contemplated entrepreneurial action, and with your estimate of the revenues that you forecast or judge will accrue to you. That information and other aspects of action play into this is not any revolutionary insight, and dropping a few Austrian buzzwords out of context to bamboozle neophytes proves nothing at all except that you are grasping at straws in a vain attempt to justify the imposition of artificial scarcity on non-scarce things.

You seem to think that poking holes in a few aspects of a massive, multi-layered criticism of the various incomplete and fallacious arguments in favor of IP, somehow proves IP. Even if your attempt to poke a few holes were not mere incoherent, fumbling, ad hoc gadflyism, this would not prove IP. Even if we said nothing in criticism of pro-IP arguments, the IP advocate still has his burden to carry and none has yet done so. In my view there almost no coherent attempts to prove IP from a principled point of view–Rand’s was muddled and incomplete and intermixed with utilitarian arguments, Galambos’s was nutty and cranky; only J. Neil Schulman has mounted a serious attempt–and his simply does not work either, and besides even it veers into utilitarianism. So the only thing left are utilitarian arguments: these are all flawed for methodological and moral reasons from the get-go; and even setting these aside, the utilitarian still has the burden of proving that IP laws generate net social wealth overall–this means a showing that IP law (a) stimulates NET innovation; and (b) that the value of the net innovation is greater than the cost of IP law itself. Yet none even try to seriously show either one. If you ask them–they can’t answer. They cannot even show (a) by itself, much less that (a) is greater than (b). More damning still, the actual empirical studies that are done are either inconclusive on (a) AND (b) OR they conclude that (a) is negative; or that (b) is greater than (a).

The case against IP is easy and devastating, and lies on multiple fronts. Which is to say, IP arguments fail in almost every way. And this is the reason that now that we libertarians are looking closely at it, there is a massive recognition of the anti-IP point. I have been a libertarian for 25 years, studying the scholarly literature and issues and arguments in depth, and I cannot recall any issue like this ever, which is such a major shift in opinion (or adoption of an opinion) where so many people see the issue so well. Even the shift from minarchy to anarchy is not as decisive and obvious to libertarians. I am very happy about the direction of progress — and growing progress–on this issue, from various fronts. It is not just a few impressionable, gullible youngsters just aping the conclusions of a couple of anti-IP promoters; you have amazingly sophisticated, deep, arguments from people like Surda and many others who “get it”. It’s okay if you have your own views, but there is a reason your arguments are not making headway.

IP-free markets only allow prices to accurately reflect the value of ideas when …

What the hell is “accurately reflect the value of ideas” and what does it have to do with the economic calculation argument? You constantly try to mix normative claims into the debate. Kindly stop that.

My point is that the only difference between a system with IP and without IP is redistribution. One cannot claim, like you do, that one of those distributions is a more accurate representations of values, because that would require the existence of a method of measuring value other than market price. Once you make an assumption that there is a different measure, then there is the question why your measure should be the preferred to others. Indeed, there is a question what your measure actually is, other than some vague feeling of accuracy that you cannot explain.

… there’s only one person who will ultimately instantiate that idea?

I have no idea how you came to this conclusion. You have not defined what “instantiate that idea” means, other than it denotes a causal relationship, and we all agree that causality is an insufficient criterion for any of the conclusions that you are making. Causality is, for practical purposes, unavoidable. One cannot know if a certain action is causally related to an object or not, without having some sort of knowledge about that object. That creates a catch 22: you must at the same time abstain from certain actions without knowing what those actions are.

I’m a falsificationist. I do not prove, I disprove. Humbug eliminated, that which remains contains the truth.

Stephan_Kinsella can’t figger that one out, either, maybe you can do better.

Note that EM spectrum rights are like exclusive rights to use a gong at 8am. So there’s another scenario you need to reconcile your view with. If you can find a way to reconcile your view on all three (IP, EM exclusivity rights, gong exclusivity rights), I’m interested in hearing it. (For real, that wasn’t just a rhetorical remark — if you can come up with a position, you’re already ahead of Stephan_Kinsella.)

Could they be written down as rules of thumb or principles? I guess so yes. Would there be contradictions in these rules of thumb? Without a shadow of a doubt.

Quote:
http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
“I have suggested that because the law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. It should be noted, however, that this vastly understates the degree to which the law is indeterminate. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.”

Same applies to these rules. But people just get on with it. That is, it works fine without someone checking all the rules to make sure that they are logically consistent. Why is a complex question without doubt, but, firstly, the cost of the occasional impasse, where someone has to do something against their will because there are a gang of young lads in the other car or the other guy is rude or whatever, is deemed by everyone a price worth paying. They’ll take the occasional one of these as most of the time they benefit – at the moment – from these principles and rules of thumb, contradictory or not, so just take the rough with the smooth.

If one of them wants to call paying this occasional price and “act of aggression” and say that constructing a system in which this never happens should be the main priority ABOVE EVERYTHING ELSE, SO NO’ONE – EVER – IS A VICTIM OF ANY AGGRESSION, then ok, that is their right.

But it is not at all clear to me that this would make sense.